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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. ELISE N. MUNAFO, Defendant–Appellant.

DOCKET NO. A–4249–10T4

    Decided: March 25, 2014

Before Judges Sapp–Peterson, Lihotz and Maven.Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief).

Following trial, a jury convicted defendant Elise Munafo of second-degree aggravated assault, N.J.S.A. 2C:12–1(b)(1) (count two);  third-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39–4(d) (count four);  fourth-degree aggravated assault by recklessly causing bodily injury to another, N.J.S.A. 2C:12–1(b)(3) (count 5 as amended);  fourth-degree assault by a motor vehicle, N.J.S.A. 2C:12–1(c) (count six);  third-degree endangering an injured victim, N.J.S.A. 2C:12–1.2 (count seven);  and fourth-degree obstructing the administration of law, N.J.S.A. 2C:29–1 (count eight).   The charges issued after a physical altercation ended with defendant striking Erica Ortiz with her vehicle and leaving the scene.   After merger of count five into count two, the judge sentenced defendant to an aggregate term of five years imprisonment, subject to the 85% period of parole ineligibility, required by the No Early Release Act (NERA), N.J.S.A. 2C:43–7.2, on counts two, four, six and eight.   Additionally, she imposed a consecutive term of three years for the conviction under count seven.1

Defendant appeals from her conviction and sentence, presenting these issues for our consideration:











We have considered each of these issues in light of the arguments presented, the trial record and the applicable law.   The State concedes the judgment of conviction (JOC) must be amended to correct two errors (point four) requiring we remand for correction of the JOC. In all other respects, defendant's conviction and sentence are affirmed.


These facts are taken from the record of the five-day jury trial presided over by Judge Sherry A. Hutchins–Henderson.   The State presented fact witnesses, including Ortiz, other eyewitnesses, police investigators, and expert testimony regarding the extent and impact of Ortiz's injuries.   Also, the State played defendant's voluntary statement to police for the jury.   In her case, defendant presented four character witnesses, and an expert in the field of toxicology and blood alcohol analysis, who discussed Ortiz's likely state of intoxication and impairment.

In the early morning hours of March 1, 2009, Erica Ortiz and her friends were socializing and drinking at the XL Lounge near the intersection of New York Avenue and Jabaz Street in Newark.   At approximately 1:35 a.m., Ortiz went into the bathroom accompanied by her girlfriend, Jessica Machado.   Machado waited as Ortiz was in the stall.   Defendant entered the women's bathroom escorted by Oscar Rodriguez.   After guiding defendant to a stall, holding her arm and speaking to her along the way, Rodriguez left the bathroom.   Ortiz asked Machado if she had heard a man's voice in the ladies' room.   Machado explained she heard “a guy's voice because a girl was drunk and needed the assistance of her boyfriend to walk her to the bathroom.”

After Ortiz and defendant emerged and began washing their hands, defendant asked Ortiz:  “Do you know my boyfriend?” and “Were you talking about my boyfriend?”   Ortiz replied she did not and was confused by defendant's questions.   Defendant then grabbed Ortiz's hair and “started tussling in the bathroom,” until a bouncer intervened.   Upon leaving the bathroom Ortiz saw the bouncer escorting defendant out of the club.   She understood defendant and Rodriguez were “kicked out of the club.”   Ortiz remained and rejoined her friends.

Near the 3:00 a.m. closing time, Ortiz left the club with friends, Christina Gratacos and Nihar Patel.   When outside, she saw defendant's Mazda screech to a halt near them, and Rodriguez emerged from the car repeating, “Is that the bitch?”   Defendant replied:  “That's the girl, that's the girl.”   Ortiz looked over to see Rodriguez who walked directly toward her, then punched her in the face.   Patel pushed Rodriguez, who then punched him in the face.   A fight broke out.

Defendant joined in, pulling Ortiz's hair.   Ortiz was able to get on top of defendant and tried to end the altercation stating, “just let go, just let go.”   Rodriguez then kicked Ortiz in the ribs, knocking her off defendant.   Fighting resumed between Patel and Rodriguez, until bystanders intervened.   Defendant and Rodriguez returned to their car and drove away, with defendant in the front passenger seat and Rodriguez in the driver's seat.

A few minutes later, defendant and Rodriguez returned, parking in the middle of the street.   Ortiz was standing on the sidewalk when she noticed what she thought was Patel's jacket on the ground in front of defendant's Mazda.   Defendant was sitting in the car, as Ortiz walked into the street to pick up the jacket.   Ortiz described what next occurred, stating, “[w]hen I went to ․ pick up the jacket, I wasn't really paying attention to her, but when I got back up from picking up the jacket, [defendant] was in the driver's seat, and with the car in gear, and looking at me straight—turning the wheel toward[s] me to go over me.” 2  Defendant drove the Mazda into Ortiz, who was struck and fell to the ground.

Following impact, defendant continued driving as the vehicle's front tire ran over Ortiz, who had become lodged under the Mazda and dragged about fifty feet along New York Avenue.   Patel and others banged on the vehicle's window, and yelled to defendant to stop the car.   Defendant turned the corner onto Jabaz Street, leaving the scene.   As the Mazda's rear tire ran over Ortiz, she became dislodged.3

Ortiz was transported to the emergency room of the University of Medicine and Dentistry of New Jersey (UMDNJ).   She suffered “significant bruising ․ of her left lung,” a fractured sacrum, dislocated pelvis and left hip, a fractured left hip socket, and a ruptured bladder.   Following emergency treatment and surgery, she suffered complications requiring several additional surgical treatments.   After almost three weeks of hospitalization, she was discharged to an in-patient rehabilitation facility.

Following the assault, the police investigation identified defendant and Rodriguez as suspects.   They learned defendant had been absent from work, and she, with Rodriguez's help, sold the Mazda to Statewide Auto, a junkyard.   The vehicle had been resold preventing its recovery by police.

On March 11, 2009, defendant, accompanied by her attorney, gave police a recorded statement, which was played at trial.   In her statement, defendant explained after being escorted out of the club, she and Rodriguez started her car, pulled up to the front of the establishment, and waited for her friend.   She suggested in the ensuing scuffle, she ended up on the ground under Ortiz “getting kicked and punched,” until someone allegedly “yelled gun,” giving her the opportunity to return to her car.   As she was about to drive away, “one of the girls that was fighting me ․ jumped in front screaming like where are you going, so [she] turned the wheel and ․ left [because she] got scared.”   Defendant explained she was surprised to learn she hit someone.

Defendant was found guilty of all charges, except attempted murder.   Following sentencing, defendant filed this appeal.


Defendant challenges the propriety of the jury instructions and certain evidential determinations by the trial judge.   She also states the judgment of conviction was incorrect.   These claims are meritless.


Defendant contends, for the first time on appeal, that the jury charge erroneously omitted an element of the crime of endangering a helpless victim.   She argues the judge failed to explain the State must prove (1) defendant's flight from the scene of the accident increased the risk of further harm to the victim, or (2) the victim's condition deteriorated further as a result of defendant's flight from the scene.   Defendant suggests many people rendered aid to Ortiz following the accident, therefore, she believes the State's proofs were insufficient to satisfy this necessary element of the offense.   Defendant's contentions are unfounded.

Initially, we note, defendant did not object to the proposed jury charge.   Consequently, we must consider whether plain error is presented that requires reversal.  State v. Torres, 183 N.J. 554, 564 (2005).   Pursuant to the plain error rule, an error not brought to the trial court's attention will result in reversal only if “clearly capable of producing an unjust result[.]”  R. 2:10–2.

In assessing the propriety of the jury charge issued, we must examine the entire charge to determine whether it was ambiguous or misleading or otherwise misinformed the jury of the law.   See State v. Cagno, 211 N.J. 488, 514–25 (2012) (stating “portions of a charge alleged to be erroneous cannot be dealt with in isolation, but the charge should be examined as a whole to determine its overall effect” (internal quotation marks and citation omitted)), cert. denied, _ U.S. 877, 133 S.Ct. 877, 184 L. Ed.2d 687 (2013);  State v. R.B., 183 N.J. 308, 324 (2005).   Understanding “[j]ury charges must outline the function of the jury, set forth the issues, correctly state the applicable law in understandable language, and plainly spell out how the jury should apply the legal principles to the facts as it may find them[,]” Velazquez v. Portadin, 163 N.J. 677, 688 (2000), we must find “legal impropriety in the charge, prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.”  State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L. Ed.2d 797 (1970).   So viewed, we discern no inaccuracy capable of producing an unjust result.

Defendant was charged under N.J.S.A. 2C:12–1.2, which provides, in pertinent part:

a. A person is guilty of endangering an injured victim if he causes bodily injury to any person ․ and leaves the scene of the injury knowing or reasonably believing that the injured person is physically helpless ․ or otherwise unable to care for himself.

b. As used in this section, the following definitions shall apply:

(1) “Physically helpless” means the condition in which a person is unconscious, unable to flee, or physically unable to summon assistance[.]

The obvious focus of the statute is to minimize the risk of additional harm to an injured victim who is in need of assistance, by criminalizing the act of leaving a person helpless, incapacitated or unable to provide for his or her care, after causing bodily injury.  Ibid.

The elements of the offense of endangering an injured victim require the State establish the

defendant caused bodily injury to the victim, that the victim was sufficiently helpless, incapacitated or unable, and that the defendant left the victim at the scene of the injury knowing (being aware, N.J.S.A. 2C:2–2b(2)) or reasonably believing (disregarding or failing to perceive a risk that a reasonable person would perceive, N.J.S.A. 2C:2–2b(3)) that the victim was in that condition.

[State v. Moon, 396 N.J.Super. 109, 115 (App.Div.2007), certif. denied, 193 N.J. 586 (2008).]

As used in N.J.S.A. 2C:12–1.2, “reasonably believing” has been analogized to a reckless mental state under N.J.S.A. 2C:2–2(b)(3), that is, “disregarding or failing to perceive a risk that a reasonable person would perceive.”  Ibid.

Here, Judge Hutchins–Henderson charged the jury, using the model charge, see Model Jury Charge (Criminal), “Endangering Injured Victim” (2005), as tailored to the facts and issues presented by the evidence.   See Reynolds v. Gonzalez, 172 N.J. 266, 288 (2002) (citing Velazquez, supra, 163 N.J. at 688) (“The trial court's failure to tailor its instructions to the theories and facts presented in this case also supports a remand for a new trial.”).   The charge consistently complied with the law, fully recited the three statutory elements of the offense, and detailed applicable statutory definitions and mental states.

Defendant's argument relies on her view of this court's holding in an unpublished opinion.   We reject her contention which presents a mischaracterization of the law and ignores the markedly distinguishable facts at bar.   Further, “[n]o unpublished opinion shall constitute precedent or be binding upon any court.”  R. 1:36–3.   Accordingly, we discern no error in the jury charged provided.

We also reject the notion the evidence was insufficient to sustain the verdict.   We conclude the direct testimonial evidence provided by Ortiz and other eyewitnesses, along with all reasonable inferences drawn from the circumstantial evidence, amply support the jury's finding of defendant's guilt beyond a reasonable doubt.   The State proved defendant possessed the required mental state and all other elements of the charged criminal offense, including that defendant left the scene despite knowing Ortiz was rendered helpless and “unable to care for herself,” because of severe and substantial injuries sustained after defendant drove into Ortiz, struck her with the vehicle, ran over her body, and dragged her under the car.


Defendant next raises two evidential challenges.   She urges reversal, suggesting the trial court improperly excluded statements set forth in the UMDNJ discharge summary and, also, incorrectly admitted speculative evidence of possible future consequences of Ortiz's injuries.   We are not persuaded.

“In reviewing a trial court's evidential ruling, an appellate court is limited to examining the decision for abuse of discretion.”  Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008).   Under this standard, an appellate court should not substitute its own judgment for that of the trial court, unless the trial court's ruling was so wide of the mark that a manifest denial of justice resulted.  State v. Brown, 170 N.J. 138, 147 (2001) (internal quotation marks and citations omitted).  “The latitude initially afforded to the trial court in making a decision on the admissibility of evidence—one that is entrusted to the exercise of sound discretion—requires that appellate review, in equal measures, generally sustain that decision, provided it is supported by credible evidence in the record.”  Konop v. Rosen, 425 N.J.Super. 391, 401 (App.Div.2012) (quoting Estate of Hanges v. Metro.   Prop. & Cas. Ins. Co., 202 N.J. 369, 384 (2010)).

We recite additional facts to provide context for our review.   On cross-examination, Ortiz testified she had a “vivid recollection of that night.   It was the most traumatic night of my life, I remember in detail.”   Inquiring whether she remembered her emergency room admission, Ortiz was asked whether she recalled telling emergency personnel she “[did not] remember the details of what happened.”   At trial, Ortiz stated she “did not remember” making such a statement.4

During the cross-examination of Ortiz's treating physician, Dr. Mark Reilly, who had reviewed the hospital discharge summary during direct, to refresh his recollection, counsel asked whether “[u]pon admission did Miss Ortiz tell the treating physician she was unclear of the details of the event?”   The State objected.   Dr. Reilly, when asked by the judge, stated he was not in the emergency room and had no direct knowledge of comments to the doctors;  he would only be repeating the statements contained in the hospital discharge summary.

At sidebar, defendant argued the discharge summary included Ortiz's prior inconsistent statement, permitted by N.J.R.E. 803(a)(1).   Judge Hutchins–Henderson disagreed and concluded the statement was inadmissible hearsay.   See N.J.R.E. 602 (“[A] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”).   She noted defendant could not attempt to impeach Ortiz through her physician, who had no knowledge of the proffered statement.   She also noted defendant did not attempt to confront Ortiz with the statement during her cross-examination, giving her the opportunity to respond.   See N.J.R.E. 613(b) (providing that to avoid exclusion of evidence of alleged inconsistent statements the witness must be “afforded an opportunity to explain or deny the statement”).   Further, there was no showing the statement was “reasonably pertinent to diagnosis or treatment.”  N.J.R.E. 803(c)(4).   Indeed, defendant could not even show Ortiz made the identified statement.

We concur with the trial judge's analysis.   Defendant failed to demonstrate the hospital discharge statement was admissible, despite its content, which included hearsay imbedded in hearsay.   Defendant was not seeking to impeach Ortiz with her own prior inconsistent statement and assumed Ortiz made the statement recorded in the discharge summary.   In as much as the author of the discharge summary is unknown, it is impossible to prove whether the summary reflects Ortiz's actual remarks or merely the author's impression of her comments.

Moreover, the mere fact the discharge summary is a hospital record does not permit its admissibility.   Again, defendant failed to satisfy the prerequisites of N.J.R.E. 803(c)(4) assuring reliability.  “The traditional rationale for that departure from the hearsay rule [allowing certain medical documents to be admitted] is that such statements possess inherent reliability because the patient believes that the effectiveness of the treatment he receives may depend largely upon the accuracy of the information he provides the physician.”   R.S. v. Knighton, 125 N.J. 79, 87 (1991) (internal quotation marks and citation omitted).   See also In the Interest of C.A., 201 N.J.Super. 28, 34 (App.Div.1985) (“Reliability is based on the declarant's belief that a doctor will properly treat him [or her] if the doctor is told the truth concerning the ailment.”).   On the other hand, “statements to physicians concerning the cause of an injury, when the cause is irrelevant to diagnosis or treatment, are inadmissible.”  R.S., supra, 125 N.J. at 88.   Applying the requisite analysis, we agree with the trial judge that the statement contained in the UMDNJ discharge summary cannot be classified as a statement made by an injured person to another “reasonably necessary [for] treatment and diagnosis.”   Greenfarb v. Arre, 62 N.J.Super. 420, 435 (App.Div.1960), certif. denied, 33 N.J. 454 (1960).   The UMDNJ discharge summary was properly excluded.


Defendant next argues she suffered prejudice and was denied a fair trial by the admission of medical testimony suggesting Ortiz suffered a greater injury than what actually existed, because it included comments regarding possible future problems.   Defendant contends this evidence should have been excluded and the State, therefore, would not have been able to show Ortiz suffered serious bodily injury.5  We reject this as completely lacking merit.   R. 2:11–3(e)(2).


Defendant argues, and the State concedes, the JOC must be amended to conform to the sentence imposed by the trial court.   First, the conviction on count four was for third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39–4(d), not possession of explosives for an unlawful purpose under N.J.S.A. 2C:39–4(b).  Second, the judge found mitigating factor eight applied, N.J.S.A. 2C:44–1(b)(8) (providing “the defendant's conduct was the result of circumstances unlikely to recur”), which was omitted from the JOC. Remand for modification of the JOC to correct these errors is warranted.

Defendant also suggests that in sentencing her for endangering a helpless victim the judge failed to make sufficient factual findings to overcome a presumption of non-imprisonment, N.J.S.A. 2C:44–1(e).   She insists her lack of prior criminal record and other mitigating factors require she be sentenced a degree lower on the conviction for aggravated assault.   We are not persuaded.

In reviewing criminal sentences imposed by a trial court, we may not substitute our judgment for that of the trial court.  State v. O'Donnell, 117 N.J. 210, 215 (1989).   The critical focus of our review is:

first, whether the correct sentencing guidelines, or ․ presumptions, have been followed;  second, whether there is substantial evidence in the record to support the findings of fact upon which the sentencing court based the application of those guidelines;  and third, whether in applying those guidelines to the relevant facts the trial court clearly erred by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors.

[State v. Roth, 95 N.J. 334, 365–66 (1984).]

The Criminal Code includes certain presumptions to be considered in sentencing.   The presumption of non-imprisonment found states:

The court shall deal with a person convicted of an offense other than a crime of the first or second degree, who has not previously been convicted of an offense, without imposing a sentence of imprisonment unless, having regard to the nature and circumstances of the offense and the history, character and condition of the defendant, it is of the opinion that his imprisonment is necessary for the protection of the public․”

[N.J.S.A. 2C:44–1(e).]

Contrary to defendant's suggestion, there is no automatic application of the presumption.   Rather, when a court is imposing a sentence on an offense other than one of the first or second degree, the factual analysis made by the judge must yield a determination that the nature and circumstances of the crime, along with the history, character and condition of the defendant, result in the conclusion that protection of the public does not demand imprisonment for the conviction.

However, in this matter, the presumption is inapplicable to defendant's conviction for endangering a helpless victim for different reasons.   First, N.J.S.A. 2C:12–1.2 mandates “the sentence imposed pursuant to this section shall be ordered to be served consecutively to that imposed for any conviction of the crime that rendered the person physically helpless.”   Here, the jury convicted defendant of aggravated assault (count two), rejecting her arguments Ortiz was struck by accident.   The second-degree offense was found by the judge to warrant incarceration.   Consequently, the judge complied with N.J.S.A. 2C:12–1.2 and imposed a three-year consecutive sentence on count seven.   Defendant's suggestion that the conviction on count seven be viewed independently of the related conviction on count two for aggravated assault is specious.

Second, the judge carefully considered all applicable aggravating and mitigating factors when sentencing defendant on count two.   As required by N.J.S.A. 2C:44–1(d), the judge did not find evidence a serious injustice would result from incarceration that would override the need to deter similar conduct by others.   In fact, Judge Hutchins–Henderson heavily weighed the need for deference.

Defendant's actions were inexplicable.   The trial judge stated “this [was] probably one of the most senseless things I ․ have seen” and noted all conduct has consequences.   The judge applied aggravating factor one determining defendant's actions were “depraved and cruel.”  N.J.S.A. 2C:44–1(a)(1).   She emphasized that Ortiz's physical fitness was likely the only thing that saved her from death.   The judge also applied aggravating factor three finding defendant was likely to commit another offense, N.J.S.A. 2C:44–1(a)(3), and that the need for deterrence was a “big aggravating factor.”  N.J.S.A. 2C:44–1(a)(9).   Mitigating factors included defendant had no history of delinquency or criminal activity and the specific circumstances likely would not reoccur as they presented a “bizarre situation, and an unfortunate tragic situation.”  N.J.S.A. 2C:44–1(b)(7) and (8).   In performing the necessary weighing process, the judge found “in no way do the mitigating factors in this case substantially outweigh the aggravating factors.”   Therefore, the presumption of imprisonment for the second-degree conviction applied, N.J.S.A. 2C:44–1(d), making a possible probationary sentence inappropriate.

Third, defendant's sentence to a term of imprisonment for aggravated assault precluded imposition of a non-custodial probationary sentence for other related charges.  N.J.S.A. 2C:44–5(f) provides:

When a defendant is sentenced for more than one offense or a defendant already under sentence is sentenced for another offense committed prior to the former sentence:

(1) The court shall not sentence to probation a defendant who is under sentence of imprisonment, except as authorized by [provisions inapplicable here.]

Defendant's challenge to Judge Hutchins–Henderson's rejection of asserted mitigating factors is unfounded.   As noted, the judge considered each of defendant's arguments and explained why they were inapplicable.   We substantially concur in her reasoning based on the evidence.   Accordingly, the denial of defendant's request to apply N.J.S.A. 2C:44–1(f)(2) based on her claim of mitigation was properly rejected.   We conclude the sentences imposed, grounded on supported factual findings, was well within the statutory guidelines and did not represent an abuse of discretion.

When a conscientious trial judge adheres to the sentencing guidelines, in conformity with the principle set forth in the Criminal Code to focus on the crime not the offender, we will not interfere with the sentence imposed absent a determination that it “shocks the judicial conscience.”  Roth, supra, 95 N.J. at 364.



FN1. The jury acquitted defendant of attempted murder (count one) and, prior to trial, the State dismissed the third count of the indictment, charging third-degree possession of a weapon..  FN1. The jury acquitted defendant of attempted murder (count one) and, prior to trial, the State dismissed the third count of the indictment, charging third-degree possession of a weapon.

FN2. A bystander testified he observed defendant move from the passenger seat to the driver seat..  FN2. A bystander testified he observed defendant move from the passenger seat to the driver seat.

FN3. Witnesses testified Rodriguez separately fled on foot..  FN3. Witnesses testified Rodriguez separately fled on foot.

FN4. The discharge summary states in pertinent part:History. Patient is a 23–year–old, white, female presented with trauma today at University Hospital ․ Status:  pedestrian struck and dragged approximately 50 feet as per paramedics report․  The patient denied loss of consciousness and admitted drinking alcohol earlier that night.   Patient unclear of details of the event..  FN4. The discharge summary states in pertinent part:History. Patient is a 23–year–old, white, female presented with trauma today at University Hospital ․ Status:  pedestrian struck and dragged approximately 50 feet as per paramedics report․  The patient denied loss of consciousness and admitted drinking alcohol earlier that night.   Patient unclear of details of the event.

FN5. “Serious bodily injury” is defined as “bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ[.]”  N.J.S.A. 2C:11–1(b)..  FN5. “Serious bodily injury” is defined as “bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ[.]”  N.J.S.A. 2C:11–1(b).


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